Select Committee on European Union Twenty-Seventh Report


Government Response to the Sixth Report of the House of Lords Select Committee on the European Union, Session 2003-03


The House of Lords Select Committee on the European Union published its report "The Future Status of the EU Charter of Fundamental Rights" on 3 February 2003. The Government response addresses the Committee's key conclusions (reproduced in the paragraphs in bold below.)

Any new constitution for the Union should be accompanied by a bill of rights.

1.    The Government does not accept that any new constitution has to have a bill of rights. It does agree that the treaties should be clarified and simplified and that they should state the fundamental values that guide the Union. Currently, the Union is obliged to respect as general principles of Community law fundamental rights as guaranteed by ECHR and the constitutional traditions common to the Member States. Those sources of law are external to the Union's legal order. There is a respectable argument, based on the avoidance of unnecessary duplication and legal confusion, for retaining that system.

The Charter, preferably appropriately revised but if that is impracticable then as it stands, could be incorporated into the new constitution so as to constitute the requisite bill of rights.

2.    The Government agrees that the Charter was not drafted in a form suitable for legal status. We are currently considering whether the changes proposed by the Convention's Working Group on the Charter satisfy our concerns to an extent which would allow us to consider a change in the legal status of the Charter.

If this Charter option is adopted great care must be taken via the "horizontal" clauses to ensure that Union and Community competences are not thereby enlarged and that the Charter rights are enforceable only in respect of the acts of the EU or its institutions within their respective competences or the acts of Member States in relation to the implementation of EU law.

3.    The Government agrees.

An alternative course would be for the Union to accede to the ECHR so that the ECHR became the Union's bill of rights. Here, too, however, the accession should not enlarge Union competences or the competences of Union institutions.

4.    Accession to the ECHR is seen by most EU partners as complementary, not alternative, to incorporation of the Charter. The Government agrees that, in the even of accession, great care would need to be taken to ensure that there is no enlargement of Community/Union competence.

The main difficulty with accession by the Union to the ECHR is that the necessary changes in the ECHR Treaty would have to be agreed upon by all its signatories. This unanimity might be very difficult, politically, to achieve. The difficulty would be enhanced by the need to obtain unanimity also on the reservations or derogations to accompany accession.

5.    The Government agrees that the necessary changes to the ECHR to allow the EU to accede would have to be agreed upon by the signatories to the ECHR. Similarly, on accession, the EU would have to decide if it should make any reservations or derogations in respect of those matters within its competence. The Member States would also retain their own reservations and derogations in respect of those matters within their competence.

There is no conceptual reason why the Charter option and the accession to the ECHR option should not be combined. The combination, if it could be brought about, would provide maximum protection to individual citizens in respect of any alleged breach of fundamental rights by the EU or its institutions.

6.    The Government agrees with the theory of the first proposition (but would have many objections to putting this into practice). On the second, it should be borne in mind that the ECHR is a floor not a ceiling so far as human rights standards are concerned.

The extent of the practical benefits to be brought to individual citizens either by incorporation of the Charter, or by accession of the Union to the ECHR, or by both, is likely to be limited and disappointing unless there is at the same time a reform of the remedies obtainable by citizens from the Community courts. Without this reform the new bill of rights may take on the appearance of a false prospectus. A review of the jurisdiction of the ECJ and the rules governing and limiting the ability of individual citizens to obtain remedies from the Community courts should be put in hand immediately, with a view to implementation of any necessary reforms at the same time as the coming into effect of the new bill of rights.

7.    We are not in favour of individual right of access to the European Court of Justice. The issue of remedies for breaches of the ECHR is dealt with adequately in our view by the ECHR and the Human Rights Act. (this issue has been reviewed in the Convention by a special Discussion Circle on reform of the ECJ. A copy of the Group's agreed final report is enclosed.)[1]


(a) The Charter—horizontal clauses and commentary

The horizontal clauses provide significant advantages for legal certainty as regards the definition of competences. It is essential to ensure that the horizontal clauses are as clear and unambiguous as possible (paras 91, 92). They may need to be strengthened to ensure that the Charter does not extend the competences of the Community and the Union (para 96, 99, 101).

8.    The Government agrees and is currently considering amendments to the horizontal clauses proposed by the Convention Working Group.

If the Charter is to be incorporated into the Treaty there is a need for an authoritative commentary or "interpretation", which should be published and be readily available to the citizen and the courts (para 94). It should include a statement to the effect that the Charter is not intended to fetter the powers of Member States outside the field of Community/Union law to pursue whatever policies they choose (para 98).

9.  The Government agrees.

(b) Accession to the ECHR

The EU should have legal personality (para 119).

10.  The Government is considering this proposal.

If the Union were to accede to the Convention, the Member States should be able to agree any qualifications or reservations (paras 122, 123).

11.  The Government agrees.

The autonomy of the Community legal order would not endangered by EU accession to the ECHR. The position of the ECJ would be analogous to that of national constitutional or supreme courts in relation to the Strasbourg Court. But any uncertainty as to the application of the domestic remedies rule should be clarified in the instrument of accession (paras 126, 130 and 131).

12.  The Government tends to agree with those who say that the autonomy of the Community legal order would not be endangered by EC/EU accession to the ECHR. The ECJ would remain the "sole supreme arbiter of questions of Union law and of the validity of Union acts". The ECHR would exercise, as a specialised court, an external control on the EU institutions as it already does with national courts of the Member States. The Government is considering this issue further.

(c) Remedies

If incorporation of the Charter is to confer any real benefit on individuals, the rights that will have been created will need effective remedies in order to give those rights substance and make them meaningful (para 142).

13.  Effective remedies for rights accepted by the Member States should already be available under national law. It is for the Member States to agree what, if any, further remedies may be required at Union level (see also the final report of the Convention Discussion Circle on the ECJ, enclosed with this response).[2]

No matter within the scope of the Charter and within EU competences should be outwith the jurisdiction of the ECJ. The Court should have jurisdiction over Second and Third Pillar matters, and over all EU institutions and bodies (paras 146, 148, 150).

14.  The Government does not agree. It does not and cannot support any extension of ECJ jurisdiction over CFSP. Foreign policy is an area where national courts have not traditionally exercised jurisdiction or have been reluctant to interfere. There is no ECJ jurisdiction in CFSP at present nor should there be, in respect of an area in the EU which is intergovernmental. CFSP is inherently different from other Union activity in the nature of the powers exercised—these are essentially executive functions exercised at the international level rather than legislative powers impacting on individuals.

15.  Similarly, on police and judicial co-operation, we must ensure the right balance is struck. The Government is firmly opposed to the general communitisation of criminal procedural law. It is also opposed to the creation of a European Public Prosecutor. The Government is therefore opposed to any general extension of ECJ jurisdiction in this area. The JHA Working Group report recognised the close link between criminal law and national structure. For that reason, although the Government is willing to consider preliminary rulings jurisdiction for the Title on the Area of Freedom, Security and Jurisdiction in Part II of the draft Constitutional Treaty, it should be limited to ensure that Member States can restrict the courts or tribunals competent to refer a case to the ECJ.

The standing rule in Article 230(4) TEC should be re-examined. We urge the Government to press the Convention to do so as a matter of urgency, working in close conjunction with the Community Courts (para 156).

16    This issue was examined in some detail by the Convention Discussion Circle on the ECJ, in which Baroness Scotland participated. That Group heard that both the ECJ and Court of First Instance were divided on the need to relax the standing rule in Article 230(4) TEC and could itself reach no consensus on the matter. Baroness Scotland pointed out that the situation in some national jurisdictions, including the UK, meant that there was no practical gap or lacuna to be addressed. A copy of that Group's report is enclosed with this response.[3]

The resources of the Community Courts and the Strasbourg Court need strengthening to enable cases to be decided within a reasonable time (para 133).

17.  The Government attaches great important to the Courts' work. Improving their effectiveness is a key aim. We will work to ensure the Courts have resources to do their job properly and efficiently. Changes under the Treaty of Nice, which came into force on 1 February, will also facilitate the allocation of work between the European Court of Justice (ECJ) and the Court of First Instance (CFI), as well as providing for judicial panels to be attached to the CFI. Work is underway to implement these changes which should enable the Courts to carry out their work as efficiently as possible.

18.  As for the ECHR, a three-year reform programme aimed at reducing the backlog is in train. The programme includes a significant uplift in resources of £9m extra over 2003-5; the UK's share is currently estimated to be around £1.2m.


The Committee considers that incorporating the Charter into the Treaties raises important questions to which the attention of the House should be drawn and recommends the Report to the House for debate.

19.  The Government would be happy to participate in any debate the House may decide upon.


Foreign and Commonwealth Office            29 May 2003

1   See Appendix 3 Back

2   See Appendix 3 Back

3   See Appendix 3 Back

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